# Lee Kwan Woh v Public Prosecutor

Lee Kwan Woh v. Public Prosecutor, [2009] 5 MLJ 301 is a landmark case of the Federal Court of Malaysia, in which the court ruled that article 5(1) of the Federal Constitution of Malaysia guaranteed people the right to a fair trial and entrenched the doctrine of proportionality when read harmoniously with the equality clause under article 8(1) of the Federal Constitution. The Federal Court concluded that Lee Kwan Woh, the accused, was not given the opportunity to make a defence against the prosecution, depriving him of his right to a fair trial. The Federal Court also emphasised on a liberal and purposive approach in interpreting the Federal Constitution, outlining that the provisions pertaining to fundamental rights spelt out in the Federal Constitution (articles 5 to 13) ought to be interpreted in a generous and prismatic fashion rather than a literal and pedantic manner.

## Background

Lee Kwan Woh, the accused, was charged for trafficking 420g of cannabis, an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952. At the High Court of Ipoh, Perak, the trial judge held that the prosecution had made out a prima facie case at the closing of the prosecution stage under section 180(1) of the Criminal Procedure Code and that the judge did not need to hear any submissions from the accused. Thereafter, Lee Kwan Woh was convicted by the High Court and sentenced to death. Lee Kwan Woh then appealed to the Court of Appeal, which affirmed the High Court’s decision. Lee Kwan Woh ultimately appealed to the Federal Court, which his counsel submitted two arguments to the court: firstly, the accused was not given a right to a fair trial, which violated his constitutional right under article 5(1) of the Federal Constitution and secondly, the High Court judge had failed to judicially appreciate the evidence, thereby misdirecting himself and had engendered a miscarriage of justice to the accused.

## Decision

The case was heard by a bench of three judges, empanelled by the then Chief Judge of the High Court of Sabah and Sarawak, Tun Datuk Seri Panglima Richard Malanjum and two other Federal Court judges, Justices Dato' Hashim bin Che Yusoff and Datuk Seri Gopal Sri Ram.
The Federal Court of Malaysia issued its decision on July 31, 2009. In a unanimous 3-0 judgement, the Court held that the High Court judge had deprived Lee Kwan Woh the right to a fair trial when the judge failed to give him the opportunity to submit his defence and only took into account the prosecution’s case at the closing of the prosecution stage. Furthermore, the Federal Court ruled that the High Court judge also failed to judicially appreciate the evidence when the judge had not undertaken a maximum evaluation of the evidence of the inspector, the investigating officer and the detective at the High Court stage, resulting in a substantial miscarriage of justice to the accused.
The unanimous judgement was written by Justice Datuk Seri Gopal Sri Ram and joined by Chief Judge of the High Court of Sabah and Sarawak, Tun Datuk Seri Panglima Richard Malanjum and Justice Dato' Hashim bin Che Yusoff.

### Prismatic Interpretation of the Constitution

In his introductory statement, Justice Datuk Seri Gopal Sri Ram first ascertained whether the right to a fair trial was guaranteed constitutionally under article 5(1) of the Federal Constitution by delving into the approaches of interpreting the Federal Constitution. The Honourable Justice remarked that the Federal Constitution of Malaysia was not merely an ordinary statute, holding that the constitution ought not to be interpreted by the use of the principles of construction that are employed as guides for the interpretation of ordinary statutes, affirming the decision laid down by the Privy Council in the landmark case of Hinds v. The Queen, [1976] 1 All ER 353. Justice Datuk Seri Gopal Sri Ram continued by stating that the decision of the Federal Court in Government of Malaysia v. Loh Wai Kong, [1979] 2 MLJ 33 where the court stated that “it is well-settled that the meaning of words used in any portion of a statute and the same principle applies to a constitution depends on the context in which they are placed”, was decided per incuriam and was therefore a bad precedent for the courts to follow.
Moreover, The Honourable Justice further underscored that the Federal Constitution of Malaysia is a document sui generis governed by interpretive principles of its own, that its provisions should be interpreted generously and liberally and not literally, particularly the provisions that guarantee to individuals the protection of fundamental rights. Therefore, it was the duty of a court to adopt a prismatic approach when interpreting the fundamental rights guaranteed under the Federal Constitution. In construing the provisions of the Federal Constitution, Justice Datuk Seri Gopal Sri Ram enunciated that the prismatic interpretive approach will reveal to the court the rights submerged in the concepts employed by the several fundamental liberties provisions in the Federal Constitution as a prismatic interpretation of the Federal Constitution gives life to abstract concepts such as ‘life’ and ‘personal liberty’ in article 5(1) of the Federal Constitution, analogising by saying: ‘When light passes through a prism it reveals its constituent colours.’
The Honourable Justice further propounded that a court when interpreting the other provisions of Federal Constitution, in particular, those appearing in the fundamental liberties provisions (article 5 to 13) thereof must do so in the light of the provision of article 8(1) of the Federal Constitution.
   Article 5 - Liberty of the person
   (1) No person shall be deprived of his life or personal liberty save in accordance with law.
   Article 8 - Equality
   (1) All persons are equal before the law and entitled to the equal protection of the law.
In reading the provisions of the Federal Constitution, including article 5(1) of the Federal Constitution, together harmoniously with article 8(1) of the Federal Constitution, Justice Gopal Sri Ram opined that the equality clause guarantees fairness of all forms of State action and ensures that legislative, administrative and judicial action is objectively fair. The Honourable Justice also reasoned that the said provision housed within it the doctrine of proportionality which is the test to be used when determining whether any form of state action (executive, legislative or judicial) is arbitrary or excessive when it is asserted that a fundamental right is alleged to have been infringed.
In addition, Justice Gopal Sri Ram also stated that even though fundamental rights guaranteed by the Federal Constitution must be read generously and in a prismatic fashion, provisions that limit or derogate those rights must be read restrictively and narrowly. As a result, when article 5(1) of the Federal Constitution was read prismatically and in the light of article 8(1) of the Federal Constitution, the concepts of ‘life’ and ‘personal liberty’ enshrined were found to contain in them other rights as the term ‘life’ meant more than ‘mere animal existence’ and includes such rights as livelihood and the quality of life, and ‘personal liberty’ includes other rights such as the right to travel abroad, to which Justice Gopal Sri Ram affirmed the landmark Court of Appeal case of Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor, [1996] 1 MLJ 261 and overruled the Federal Court decision in Government of Malaysia v. Loh Wai Kong.
In interpreting the phrase ‘in accordance with law’ stipulated in article 5(1) of Federal Constitution, The Honourable Justice remarked that article 5(1) of the Federal Constitution strikes down all forms of state action that deprive either life or personal liberty, bearing a meaning of the widest scope in contravention of substantive or procedural law. Justice Gopal Sri Ram further cross referenced the definition of ‘law’ under article 160(2) of the Federal Constitution to include ‘common law’ under section 66 of the Interpretation Acts of 1948 and 1967.
   Article 160 - Interpretation
   (2) ‘Law’ includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.
   Section 66 - Definitions
   ‘common law’ means the common law of England
Justice Datuk Seri Gopal Sri Ram further examined that the rule of law forms part and parcel of the common law of England and the rules of natural justice form part of the wider concept of procedural irregularity laid down by the House of Lords in the landmark case of Council of Civil Service Unions & Ors v. Minister for the Civil Service, [1985] AC 374 were an integral part of the rule of law. Consequently, the rule of law in all its facets and dimensions was included in the expression ‘law’ wherever used in the Federal Constitution. Hence, The Honourable Justice deduced that the expression ‘law’ in article 5(1) of the Federal Constitution includes written law and the common law of England, including the rule of law and all its integral components and in both its procedural and substantive matters as it was settled that the rule of law has both procedural and substantive dimensions. It was also clear that the rules of natural justice, which was the procedural aspect of the rule of law, is an integral part of articles 5(1) and 8(1) of the Federal Constitution, incorporating procedural fairness.
Justice Gopal Sri Ram further highlighted that it was a fundamental right guaranteed by article 5(1) of the Federal Constitution that a person’s life or personal liberty in its widest sense may not be deprived save in accordance with state action that was fair both procedurally and substantively. Thus, whether an impugned state action is substantively or procedurally fair must depend on the facts and circumstances of each case. However, when the principle is applied to a criminal case, what it means is that an accused has a constitutionally guaranteed right to receive a fair trial by an impartial court and to have a just decision on the facts. If there was an infraction of any of these rights, the accused was entitled to an acquittal, nonetheless, whether there has been a fair trial by an impartial court or a just decision depends on the facts of each case.
The Honourable Justice then concluded that the constitutionally guaranteed right in an accused to a fair trial included his right to make a submission of his or her case at the close of the prosecution’s case, to which it was a right that he or she may waive but he or she cannot be deprived of it. As a result, Lee Kwan Woh was not accorded to a fair trial and his right under article 5(1) of the Federal Constitution was violated. Justice Gopal Sri Ram further commented that a trial court must, at the close of the prosecution case, invite submissions from an accused, where it was open to the accused to say that he or she does not wish to make a submission. However, if he or she does not make that choice, he or she must be heard. It is nevertheless open to the court, after it had heard those submissions, to reject them and call for the defence without affording the prosecution a right to reply. This does no harm to the prosecution but what the trial court cannot lawfully do is to deprive an accused of his constitutionally guaranteed right to a fair trial by denying him or her of the opportunity to make a submission of no case.

### High Court Judge’s Failure to Judicially Appreciate the Evidence

In re-examining the evidence of the prosecution at the High Court stage, Justice Datuk Seri Gopal Sri Ram highlighted that there was a serious doubt as to whether Lee Kwan Woh was arrested when emerging from the car or in the compound of his house, and was highly questionable that the accused was carrying a white plastic bag which contained the 420g of cannabis. Thus, the Honourable Justice inferred that the prosecution had failed to establish how the drug in question came to be recovered, which left a large gap in the prosecution case. Additionally, the testimony of the investigating officer had been contradicted on the question as to whether there had been, earlier the same day, drugs had been recovered from the premises of the accused’s house and that eight persons had been arrested.
Justice Datuk Seri Gopal Sri Ram further deduced that if that was true, then the drug that formed the subject matter of the charge may have come from there and at the very least, there was more than one inference that could fairly be drawn from the prosecution’s evidence. Further, it was settled law that in that state of affairs, the inference most favourable to Lee Kwan Woh should have been drawn. Therefore, the High Court judge, at the close of the prosecution case, had the duty to undertake a maximum or positive evaluation of all the evidence tendered at the prosecution stage. In enunciating that a reasonable court should properly direct itself on the applicable law and judicially appreciate the evidence which would have acquitted Lee Kwan Woh at the close of the prosecution case, The Honourable Justice deduced that the High Court judge had failed to judicially appreciate the evidence by undertaking a maximum or positive evaluation of the evidence of the inspector, the investigating officer and the detective in charge, which resulted in a substantial miscarriage of justice.

## Outcome

The Federal Court held that the Court of Appeal had misdirected itself with the facts and law when agreeing with the High Court’s decision to convict Lee Kwan Woh. Justice Datuk Seri Gopal Sri Ram noted that:
   “In our judgment, quite apart from the constitutional point, the appellant’s [Lee Kwan Woh’s] conviction was plainly unsafe having regard to the facts and evidence as they stood at the close of the case for the prosecution. The learned trial judge clearly erred in the way he handled the facts and that in itself is sufficient ground for the appellate interference."
The Federal Court allowed Lee Kwan Woh’s appeal, overruled the decisions of the High Court and Court of Appeal, quashed the accused’s conviction and set aside Lee Kwan Woh’s sentence.